Judge: Laura A. Seigle, Case: 20STCV13372, Date: 2023-01-09 Tentative Ruling
Case Number: 20STCV13372 Hearing Date: January 9, 2023 Dept: 15
[TENTATIVE] ORDER RE MOTIONS IN LIMINE
Defendants’ MIL No. 1
Defendant
Union Carbide moves to exclude evidence of its corporate structure and
relationship with Dow Chemical and Dow as irrelevant. This motion is too vague. For example, an exhibit that is otherwise
relevant and admissible may refer to an entity in Union Carbide’s corporate
structure or to Dow Chemical.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 2
Union Carbide moves to
exclude evidence of working conditions at its facilities as irrelevant and
unduly prejudicial because Cornejo was never employed by Union Carbide. This motion is too vague. If “working conditions” refers to something
like wage and hour violations, that would be irrelevant. However, if it refers to something like
workers being exposed to asbestos, the evidence could be relevant. For example, the evidence of asbestos
exposure at Union Carbide’s facilities could be relevant to knowledge or
notice.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 3
Union
Carbide moves to exclude any reference to incidents where people died or were
injured as a result of Union Carbide’s chemicals other than asbestos. Incidents not involving asbestos are
irrelevant, more prejudicial than probative and would be unduly time consuming.
The
motion is granted.
Defendants’ MIL No. 4
Union Carbide seeks to
bifurcate punitive damages. When a
defendant moves to bifurcate, the court is required to preclude the admission
of evidence of the defendant’s financial condition until after the trier of
fact returns a verdict for plaintiff awarding actual damages and finds that the
defendant is guilty of malice, oppression or fraud. (Civ. Code § 3295, subd. (d).)
The motion is granted.
Defendants’ MIL No. 5
Dunn-Edwards
moves to exclude evidence of products the decedent never obtained from
Defendant, such as Plastacoat, Prokote, Hamilton brand drywall finishing products,
and Synkoloid brand drywall finishing products.
As detailed in the ruling on Dunn-Edwards’ motion for summary judgment,
there is evidence from which a jury could conclude the decedent bought
Synkoloid Plaster Bond from Dunn-Edwards, as well as evidence he used Hamilton
products and bought caulking material, patchwork, and stucco patch from
Dunn-Edwards.
The
motion is too vague as to unnamed products decedent did not obtain from
Defendant. As for Plastacoat, Prokote,
Hamilton, and Synkoloid products, if Plaintiffs argue the decedent bought those
specific products from Dunn-Edwards and then fail to produce any such evidence
at trial, Defendant can argue that Plaintiffs failed to make their case.
The
motion is denied.
Defendants’ MIL No. 6
Dunn-Edwards
moves to exclude transcripts from prior depositions. Pursuant to the July 8, 2022 CMO, objections
to prior deposition testimony is handled through the page-line designation
process.
The
motion is denied.
Defendants’ MIL No. 7
Vanderbilt Minerals moves
to exclude evidence of workers’ compensation claims or allegations by its
workers related to asbestos-related diseases.
If notice is contested, some evidence of the claims and allegations may
be relevant. However, the details of
other claims, workers’ compensation actions, and other litigations would be
unduly prejudicial, time-consuming, and confusing to the jury. It is for the trial judge to determine how
much is too much.
The
motion is denied subject to objection at trial.
Defendants’ MIL No. 8
Vanderbilt
Minerals moves to exclude the Hull Paper as “nothing more than junk science”
because its authors serve as expert witness for plaintiffs, it was not subject
to peer review, and it did not follow the proper methodology.
If an
expert establishes that the Hull Paper is the type of material that experts in
the field rely upon, evidence about the Hull Paper may be admissible. Defendant can then cross-examine the expert
about the perceived deficiencies in the study and argue to the jury that it
should be given little or no weight.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 9
Defendants
seek to exclude the general use of the word “asbestos” during the trial in this
asbestos case without a more specific description of the type of asbestos being
referred to. This is too vague and
overbroad. “Asbestos” is a word commonly
used in asbestos litigation. If a
question during trial requires a more specific definition of the word,
Defendants can object at that time.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 10
Defendants
seek to exclude any reference to a continuing duty to warn. Pursuant to the July 8, 2022 CMO, this motion
is deemed made and denied. Defendants
did not show good cause to depart from the CMO.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 11
Vanderbilt Minerals moves
to exclude testimony based on medical case reports in medical journals. This motion is too vague as it does not
identify any specific evidence to be excluded.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 12
Vanderbilt
Minerals seeks to preclude any mention of an investigation against John Gamble
relating to a change in his work at NIOSH under Evidence Code section 352.
The
investigation into Gamble is irrelevant, will be a confusing side-show, and
will take an undue amount of time in a trial that will already require too much
time of the jury.
The
motion is granted as to an investigation into Gamble.
Defendants’ MIL No. 13
Vanderbilt
Minerals seeks to exclude all evidence of any documents from Johns-Manville
Corporation about Vanderbilt Minerals.
This motion is too vague and broad in referring to all such
documents.
Defendant then specifies
three documents to exclude, arguing they are hearsay and Plaintiffs cannot
establish that the documents are business records. If Plaintiffs seek to use the documents at
trial for the truth of the matter asserted (rather than for some non-hearsay purpose),
and if they fail to show they are business records, Defendant can object at
that time.
The motion is denied
without prejudice to objections at trial.
Defendants’ MIL No. 14
Vanderbilt
Mineral seeks to exclude a November 11, 1983 letter as lacking authentication,
hearsay, and an improper expert opinion.
If
Plaintiffs are able to authenticate the letter at trial, it may be admissible
for a non-hearsay purpose, such as notice or knowledge about asbestos in
talc. Or an expert may be able to
establish that it is the type of material that experts in the field reliable
upon.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 15
Vanderbilt
Minerals seeks to preclude March 24, 1982 and March 31, 1982 OSHRC documents about
asbestos in R.T. Vanderbilt Company’s talc as lacking foundation, hearsay, and
improper expert testimony.
If
Plaintiffs are able to authenticate the documents at trial, they may be
admissible for a non-hearsay purpose, such as notice or knowledge about
asbestos in talc. Or an expert may be
able to establish that it is the type of material that experts in the field
reliable upon.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 16
Vanderbilt Minerals moves
to exclude all evidence that it communicated with the government about a proper
definition of asbestos. This motion is
too vague and overbroad. It does not
identify any particular communications or any particular governmental agency,
branch of government or state or federal government entity. Also, Defendant’s communications may be
relevant to its notice or knowledge about asbestos in talc.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 17
Defendants
seek to exclude evidence about diseases other than mesothelioma as not
relevant, prejudicial, confusing, and too time-consuming. Plaintiffs allege Defendants’ products caused
the decedent mesothelioma, not some other disease. Therefore evidence about other diseases would
be unduly time-consuming, confusing, and prejudicial.
The
motion is granted.
Defendants’ MIL No. 18
Vanderbilt Minerals seeks
to exclude statements that its products kill people as argumentative and
prejudicial. This motion is too
vague. If at trial someone makes an
improper statement, Defendant should object at that time.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 19
Defendant
3M seeks to exclude CACI 435 and any evidence and argument about substantial
factor causation. The trial judge will
decide which jury instructions are appropriate in this case. Also, pursuant to the July 8, 2022 CMO, a
motion to exclude expert testimony about “substantial factor” is deemed made
and denied.
The
motion is denied without prejudice to objection at trial and argument to the
trial court about the proper jury instructions.
Defendants’ MIL No. 20
No
motion was filed.
Defendants’ MIL No. 21
3M
seeks to exclude evidence about field report complaints about respirators, 3M’s
out-of-state conduct, and other lawsuits 3M was involved in. This motion is vague and does not identify
the specific documents or other evidence to be excluded. For example, a complaint about a respirator
could be relevant to knowledge or notice.
The reference to “out-of-state conduct” is extremely vague. And while generally evidence of other
lawsuits may be more prejudicial than probative, it is common for parties to
designate testimony from depositions in other lawsuits.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL Nos. 22, 36
3M
moves to exclude evidence about its advertising, marketing and packaging
materials, as well as any evidence about product warnings, because there is no
evidence the decedent relied on those materials or any product warnings. Therefore, 3M argues, any failure to warn claim
fails. Also 3M argues it had no duty to
warn the decedent.
As an initial matter,
this is a motion for summary adjudication of Plaintiffs’ failure to warn claim,
which is not a proper use of a motion in limine. Also, 3M did not submit evidence establishing
that Plaintiffs cannot prove the decedent did not rely on such materials or
product warnings.
The
motions are denied without prejudice to objections at trial.
Defendants’ MIL No. 23
3M
moves to exclude speculative testimony that the decedent was exposed to asbestos
while wearing a 3M respirator. Pursuant
to the July y8, 2022 CMO, this motion is deemed made and denied. Defendant did not show good cause to depart
from the CMO.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 24
See
Defendants’ MIL No. 10.
Defendants’ MIL No. 25
3M
seeks to exclude non-expert testimony about its respirator’s defects. 3M argues Plaintiffs have no knowledge about
how the respirators were designed or intended to be used. This motion is too vague. If at trial Plaintiffs are asked about a
topic about which they have no knowledge, 3M should object at that time.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL No. 26
3M
moves to exclude an August 2, 2022 report prepared by Enviorcare Consulting,
Inc., which tested materials from the master bedroom closet in Plaintiffs’ home
for asbestos.
3M first argues the
report lacks foundation because there is no evidence the decedent removed
popcorn ceiling from the master bedroom closet. However, 3M did not submit evidence
establishing Plaintiffs have no such evidence.
Next 3M argues the person
who signed the report did not do the testing and therefore is not qualified to
testify about the testing. The court
cannot reach that conclusion based on the information provided. For example, the person who signed the report,
or some other expert knowledgeable about the laboratory that did the testing, may
be able to establish the reliability of that laboratory and its work.
3M further argues the August
2, 2022 report is hearsay. That is
correct if Plaintiffs plan to offer it for the truth of the matter – that
materials in the house contained asbestos.
Plaintiffs argue the report is not case-specific hearsay and is the type
of material upon which an expert can rely.
Plaintiffs do not state that the person who actually conducted the
testing will testify at trial.
While an expert can rely
on hearsay, “an expert may not relate inadmissible ‘case-specific facts about
which the expert has no independent knowledge.
[Citation.] ‘Case-specific facts
are those relating to the particular events and participants alleged to have
been involved in the case being tried.
[Citation.] Testimony relating
such facts, unlike testimony about non-case-specific background information, is
subject to exclusion on hearsay grounds.”
(People v. Veamatahau (2020) 9 Cal.5th 16, 26.) The testing report was prepared for this case
and concerns the particular events and participants involved in this case – the
decedent’s house and the materials in his house that allegedly exposed him to
asbestos. Therefore it is case-specific
hearsay. That means that while
Plaintiffs’ experts can rely on the testing report, they cannot tell the jury
the contents of the report.
If the person who
conducted the testing is a witness at the trial, that person can testify from
personal knowledge about how he or she did the testing and the results.
The motion is granted to
the extent a witness (other than the person who did the testing) attempts to tell
the jury the contents of the report.
Defendants’ MIL No. 27
Defendant
DAP, Inc. moves to exclude evidence about testing, monitoring, and safety
equipment at its manufacturing facilities as irrelevant because consumer use of
finished products is different than the manufacturing of the products from raw
materials. However, such evidence may be
relevant to Defendant’s knowledge that its products contained asbestos and the
hazards of asbestos.
The
motion is denied without prejudice to objections at trial.
Defendants’ MIL Nos. 28-29
No
motions were filed.
Defendants’ MIL No. 30
Defendant
The Scotts Company seeks to preclude evidence about products from Defendant or
third parties other than Turf Builder because there is no evidence the decedent
used any product other than Turf Builder.
This motion is too vague. For
example, evidence that members of the fertilizer industry knew similar
fertilizer products using the same ingredients contained asbestos and that
those products were hazardous could be relevant to notice and knowledge.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL No. 31
The
Scotts Company moves to exclude evidence of working conditions at its plant,
arguing that the fibers at its plant were not asbestos and the workers were
exposed much longer than the decedent using the finished product.
The court cannot conclude
based on the evidence presented that the fibers at the plant were not
asbestos. That is a disputed issue for
the jury to decide. Evidence that Defendant
used an ingredient that contained asbestos to manufacture the fertilizer used
by the decedent is relevant to Plaintiffs’ claims. That Defendants’ employees allegedly were
exposed to asbestos while manufacturing the product could be relevant to prove
that the fertilizer contained asbestos and to notice and knowledge.
The
motion is denied.
Defendants’ MIL No. 32
Defendant
The Scotts Company seeks to preclude evidence of testing of products from
Defendant or third parties other than Turf Builder because there is no evidence
the decedent used any product other than Turf Builder, and the other products
were made from different ingredients or using different processes.
This motion is too
vague. Evidence of asbestos in other
fertilizer products may be relevant to notice and knowledge about the presence
of asbestos in fertilizer ingredients.
That other fertilizer products contained different ingredients or were
made using other processes are subjects for cross-examination of experts and go
to the weight to be given the experts’ opinions.
The
motion is denied without prejudice to objection at trial.
Defendants’ MIL Nos. 33-35
No
motions were filed.
Defendants’ MIL No. 36
See above.
The moving party is to give notice.